The case is before the Authority on a negotiability appeal
filed by the Union under section 7105(a)(2)(E) of the Federal
Service Labor-Management Relations Statute (the Statute). The
Union sought review of three proposals relating to the
implementation of the Agency's drug testing program. The three
proposals were referenced by the parties as sections 9, 10 and
19.

The Agency argues that the petition for review with regard
to the proposals designated as sections 9 and 10 was untimely
filed under the Authority's Rules and Regulations. We agree
for the reasons explained below. Additionally, in responding
to the Agency's statement of position, the Union withdrew the
proposal concerning section 19. In view of the untimeliness of
the petition with regard to two proposals and the withdrawal of
the third proposal, there are no proposals before the Authority
for review. Consequently, we will dismiss the petition for
review.

II. Timeliness of the Petition for Review

The record indicates that on October 20, 1988, the Union
requested a written allegation from the Agency with regard to a
number of drug testing proposals, including sections 9, 10, and
19. The Union also submitted a request for an allegation of
nonnegotiability on March 27, 1989, although the record does
not indicate the contents of that request. On April 20, 1989,
the Union again requested an allegation, but only with regard
to sections 9, 10 and 19. By letter dated April 27, 1989, the
Agency provided the Union with an allegation of
nonnegotiability with regard to several drug testing proposals,
including sections 9 and 10, but not section 19. The Agency's
letter indicated that it was in response to the Union's
requests of October 20, 1988, and March 27, 1989, but the
letter did not reference the Union's request of April 20, 1989.
The Union's petition for review was hand-delivered to the
Authority on May 25, 1989.

The Agency argues that the petition for review as to the
proposals referenced as sections 9 and 10 is untimely based on
the dates of the Union's requests for allegations of
nonnegotiability and the Agency's response thereto. The Agency
notes that the Union requested an allegation of
nonnegotiability from the Agency concerning sections 9 and 10
on October 20, 1988, and again on April 20, 1989, and that the
Agency responded, in writing, on April 27, 1989. According to
the Agency, the Union's petition was filed more than 15 days
after the date of the Agency's written allegation and more than
15 days from the date the Union states that it received the
written allegation on May 4, 1989.

The Union argues that the petition was timely filed for a
number of reasons. The Union states that in a letter to the
Authority dated May 8, 1989, relating to a prior case before
the Authority, involving the same parties and other drug
testing proposals, the Union questioned the effect of the April
27, 1989, response because it included allegations of
nonnegotiability regarding proposals not requested by the Union
on March 27, 1989.(1) Those proposals included sections 9 and 10. In that letter, the Union also requested an
extension of time for filing a petition for review if the
Authority determined the April 27 response to be a valid
allegation of nonnegotiability. The Union now argues that, as
no extension was granted, the Authority apparently did not view
the Agency's response as being a valid declaration of
nonnegotiability with regard to sections 9 and 10. The Union
also argues that it "diligently pursued its case and relies on
the equitable principle of estoppel to dismiss the [A]gency's
contentions." Union Response at 4. Finally, the Union raises
various other arguments to support its view that the petition
is timely. The arguments relate to: the date on which the
Union claims the petition for review was initiated; the date on
which the Union states it requested an allegation from the
Agency in this case; the timeliness of the Agency's response to
the Union's October 20, 1988, and March 27, 1989, requests for
written allegations of nonnegotiability; and the applicability
of the Authority's Rules and Regulations in providing
additional days for the mailing of documents when computing
filing dates.

For the following reasons, we find that the petition for
review with regard to the proposals referenced as sections 9
and 10 was untimely filed, and must be dismissed on that basis.
Inasmuch as the petition for review of the proposal concerning
section 19 was withdrawn by the Union, we need not make any
further references or findings with regard to that proposal.

The time limit for filing a petition for review of
negotiability issues is 15 days after service on the Union of
the Agency's allegation of nonnegotiability. 5 C.F.R. § 2424.3. The date of service is the date the allegation is
deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). If the allegation is served by mail, 5 days are
added to the 15-day period for filing the petition for review.
5 C.F.R. § 2429.22. In the absence of a postmarked envelope or
other evidence bearing the actual service date, the date on an
allegation is presumed to be the date on which it is served.
American Federation of Government Employees, AFL-CIO, Local
2608 and Department of Health and Human Services, Social
Security Administration, Santurce Branch Office, Puerto Rico, 33 FLRA 873, 874 (1989).
The time limit may not be extended or waived by the Authority.
5 C.F.R. § 2429.23(d).(2)SeealsoInternational Association of
Fire Fighters, Local F-33 and U.S. Department of the Navy,
Naval Air Station, San Diego, California, 37 FLRA 460, 461
(1990). Any document filed with the Authority, including a
petition for review of negotiability issues, must be filed with
the Authority's Docket Room in Washington, D.C. 5 C.F.R. § 2429.24(a).

In order to address the timeliness of the petition for
review, we need to ascertain when the Union requested an
allegation of nonnegotiability and whether the Agency's April
27 response constituted a written allegation within the meaning
of 5 C.F.R. § 2424.3.

The Union claims that "the instant petition was initiated
on April 24, 1989," and, further, "the record clearly
indicates, the [U]nion's request for allegations from the
[A]gency in this case is dated May 8, 1989." Union Response at
6, 7. The record does not support these contentions. Rather,
the record indicates that the Union initially requested a
written allegation from the Agency on October 20, 1988.
Included in this request were sections 9 and 10. No written
allegation was provided by the Agency and no petition for
review was filed by the Union. The Union again requested a
written allegation on March 27, 1989, apparently as to other
proposals. There was no response provided by the Agency or
petition for review filed by the Union. Finally, the Union
again requested a written allegation concerning sections 9 and
10 on April 20, 1989. On April 27, 1989, the Agency responded
and declared the proposals referenced as sections 9 and 10 to
be nonnegotiable.

We find that the Agency's April 27, 1989, response
constituted a written allegation of nonnegotiability within the
meaning of 5 C.F.R. § 2424.3, with regard to sections 9 and 10.
We view as irrelevant the Agency's failure to reference the
Union's April 20 request in the April 27 response. It is clear
from the Agency's response that the declaration of
nonnegotiability was provided in response to the proposals
referenced as sections 9 and 10. It is also clear that the
language of those proposals was unchanged from the October 20, 1988, request to the April 20, 1989,
request. Therefore, whether the Agency was responding to the
October 20, 1988, request or the April 20 request, the April 27
allegation responds to the actual language of the proposals
designated as sections 9 and 10.

We reject the Union's assertion that the Agency's response
was untimely filed. The Agency was not obligated to provide a
written allegation within any time limits established under the
Authority's Rules and Regulations. Instead, where a union
requests an allegation and does not receive one in writing
within 10 days after receipt of the request, the union may file
a petition for review at any time after the expiration of the
10-day period. Here, for example, the Union could have filed a
petition for review as early as 10 days following receipt by
the Agency of the Union's October 20, 1988, request, in the
absence of a written declaration provided by the Agency. In
cases where a union files a petition for review in the absence
of an agency response, the Authority views the agency's failure
to respond as constituting a constructive declaration of
nonnegotiability that gives rise to a right of appeal to the
Authority under 5 C.F.R. § 2424.3. SeeAmerican Federation of
Government Employees, Local 3342 and U.S. Department of Health
and Human Services, Social Security Administration, New York
Region, 36 FLRA 367, 372 (1990). However, as stated above, if
the agency does provide a written allegation, the union then
has 15 days after service of that allegation in which to submit
a petition for review. 5 C.F.R. § 2424.3.

Having determined that the April 27 response constituted a
valid declaration of nonnegotiability under the Authority's
Rules and Regulations with regard to the proposals referenced
as sections 9 and 10, we next address the timeliness of the
Union's petition for review.

Presuming that the Agency's written allegation was
deposited in the U.S. mail on April 27, the petition for review
had to be either postmarked by the U.S. Postal Service or
received in person at the Authority's Docket Room no later than
May 17, 1989, in order to be considered timely filed. 5 C.F.R. §§ 2424.3, 2429.21(b) and 2429.22. The Union's petition for
review was hand-delivered to the Authority's Docket Room on May
25, 1989. Thus, the petition was not timely filed. Even if
there were evidence that the written allegation was delivered
in person to the Union on May 4, 1989, the date on which the
Union states it received the allegation, the petition would
still be untimely. To have been timely filed in that instance,
the petition would have been due in the Authority's Docket
Room on May 19, 1989. 5 C.F.R. §§ 2424.3 and 2429.21(b).
Clearly, under either calculation, the Union's petition for
review, filed on May 25, 1989, was untimely filed. SeeNational Federation of Federal Employees, Local 1167 v. FLRA,
681 F.2d 886, 890 (D.C. Cir. 1982) ("[T]he statutory time
limits for filing union appeals, agency statements, and union
responses must be strictly observed."). Contrary to the
Union's assertion that the petition is timely because the
Authority's Rules and Regulations provide additional days for
filing purposes, the appropriate regulatory provisions have
been considered in computing the filing dates set forth above.

Finally, the Union's reliance on the equitable principle
of estoppel as a basis on which to dismiss the Agency's
contentions concerning the timeliness of the petition is
misplaced. Although it is not clear whether the Union's
argument relates to conduct by the Agency or to conduct of the
Authority, the argument lacks merit in either case. If the
argument is based on the failure of the Agency to respond to
the Union's October 1988 and March 1989 requests in a timely
manner, as we stated above, the Agency was not obligated to
provide a response under the Authority's Rules and Regulations.
Also, we have found that the Agency's April 27 response
constituted a valid written allegation of nonnegotiability.
Consequently, there is no basis on which to support the Union's
assertion with regard to the Agency's conduct.

Similarly, there is no basis on which to sustain the
Union's argument if it pertains to the absence of a response by
the Authority to the Union's contentions raised in its May 8,
1989, letter to the Authority in Defense Mapping Agency.
First, as to the Union's request for an extension of time in
which to file a petition for review, we have already indicated
that such a request would have been denied, as the Authority's
Rules and Regulations specifically state that the time limit
for filing a petition for review under section 7117(c)(2) of
the Statute may not be extended or waived. 5 C.F.R. § 2429.23(d). As to the other contentions raised by the Union
concerning the effect of the Agency's April 27 written
declaration, the Authority was not obligated to provide a
response. If there was any question as to the effect of the
April 27 allegation on the timely filing of a petition for
review, the Union could have filed a petition at the time it
submitted its May 8, 1989 letter. The Union thereby would have
preserved its right to raise the negotiability of the proposals
designated as sections 9 and 10 with the Authority. Had the
Authority determined that the petition was not ripe for
review, the petition would have been dismissed without
prejudice to the Union's right to file an appeal once the
conditions governing review were met. SeeFederal Professional
Nurses Association, Local 2707 and U.S. Department of Health
and Human Services, Federal Employees Occupational Health,
Region III, 34 FLRA 71 (1989) (petition for review dismissed
without prejudice where no allegations of nonnegotiability were
present before the Authority).

Accordingly, as the Union's petition for review with
regard to the proposals referenced as sections 9 and 10 was
untimely filed, and as the Union has withdrawn the proposal
designated as section 19 from consideration before the
Authority, the petition for review must be dismissed.

III. Order

The petition for review is dismissed.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. American Federation of Government Employees, Local 3407 and
U.S. Department of Defense, Defense Mapping Agency,
Hydrographic-Topographic, Washington, D.C., 39 FLRA 557 (1991)
(Defense Mapping Agency). In Defense Mapping Agency, the Authority did not pass on the Union's assertions with
regard to the effect of the April 27 written allegation as
those assertions went to proposals that were not at issue in
that case.

2. Consequently, the request made by the Union in Defense
Mapping Agency, for